Sunday, February 27, 2011

Iowa Department of Corrections Director John Baldwin recently told lawmakers on the Transportation, Infrastructures and Capitals Appropriations Subcommittee he was “troubled” by a nearly 24 percent increase in the number of “critical incident reports” within Iowa’s prison system, with more than 250 incidents in the past three quarters, according to Correctionalnews.com.

Baldwin said the number of incidents involving assaults and physical altercations increased by 62 percent since mid-2009 — including 107 in the first half of the current fiscal year.

Why the increase in prison violence? The prison population is 23 percent over capacity.Iowa’s nine prisons have a capacity of 7,209 but currently house 8,883 inmates, Baldwin said, an increase from 8,200 a year ago. All of Iowa's prisons are over capacity, ranging from 82 at Fort Dodge Correctional Facility to 413 at the Iowa Medical and Classification Center at Oakdale,according to Correctionalnews.com.

The average age of inmates is 35 years and about 7,300 are serving their first or second sentence. A total of 63 have been committed to a prison at least five times and two had nine or more sentences, according to the department of corrections.

Baldwin reported that there are about 30,000 Iowans in community-based corrections programs, half-way houses based in the community and the department supervises about 60,000 Iowans who are parole or probation, according to Correctionalnews.com.

The prison expansion comes as the gap between state spending and revenue has skyrocketed in Iowa. In FY2009, the spending gap was $400 million, which increased to $800 million in FY2010. The office of fiscal services is now estimating a $1.1billion spending gap for FY2011, according to State Representative Kent Sorensen.

Iowa, even in these difficult economic times, is trying to build its way out of prison overcrowding. The state has construction underway to expand prison space. New prison space not only costs taxpayers in terms of construction, but also in prisoner housing expenses and personnel costs.

With many states looking to close prisons or canceling prison construction it is surprising to see Iowa going in the opposite direction.

Saturday, February 26, 2011

Below is a summary of an extremely informative article on risk assessments and their role in the criminal justice system by Leon Neyfakh of the the Boston Globe.

“There has been a strong move toward the use of risk assessment instruments in the criminal justice system in recent years,” John Monahan, a psychologist at the University of Virginia Law School told the Boston Globe.

Most of the tools, known as actuarial risk assessment instruments, are essentially checklists that examine a range of character traits and biographical facts about an individual, crunch the answers, and use them to estimate that person’s likelihood of returning to crime, according to the Globe. Criminal justice experts refer to that phenomenon as recidivism. Some tools predict merely that an offender has a high risk to recidivate--that might mean he or she will commit another retail theft. What policy makers want to know is, who is going to commit another serious violent offense or even murder.

The way risk assessment tools actually work depends on who’s using them and for what purpose, but generally speaking they take the form of a questionnaire administered by a prison official or clinician — essentially a list of factors that have been shown to correlate one way or another with criminality. How old was the subject at the point of first contact with the criminal justice system? Has he or she ever held down a job or a long-term relationship? Is there a history of drug abuse on file? What about gang activity? Did the person stay out of trouble while incarcerated?

“The science of risk assessment is much better now than it was 20 years ago.” The instruments have gained traction not only as a public-safety measure, Monahan told the Globe, but because they allow for more efficient allocation of resources: When prison budgets are stretched thin, it makes sense to try to focus more funds on those inmates who pose a greater risk.

“The philosophy is to cast the net out and catch as many fish — that is, variables — as you can,” Richard Berk, a professor of criminology and statistics at the University of Pennsylvania told the Globe. “The computers are finding relationships that are unanticipated.”

There are concerns as reliance on risk assessments grows in the criminal justice system. Berk said that as the data available to researchers gets better, and the algorithms that are used to analyze it improve, we may find ourselves staring at uncomfortable predictions that leave us at a loss as to what to do with them. Berk’s method is to take into account as much data about people as is available — even if there’s no reason to think it would correlate with crime — and let massively powerful computers figure out what’s useful and what isn’t. Conceivably, these computers could discover that predictions could be made using someone’s shoe size and the kind of car their parents drove when they were kids.

“This is the nightmare that I have,” Berk told the Globe. “Supposing I am able to tell a mother that her 8-year-old has a one in three chance of committing a homicide by age 18. What the hell do I do with that information? What do the various social services do with that information?"

Friday, February 25, 2011

Snohomish County (WA) Prosecutor Mark Roe said he has 30 days to decide whether to seek the death penalty against Byron Scherf for the murder of a Washington state corrections officer. Scherf, serving a life sentence for three rapes strangled a female officer to death in the prison chapel.

According to the probable-cause affidavit released by prosecutors, Scherf believes that he deserves to die. "I took her life and I think I should forfeit mine," Scherf told Monroe police investigators earlier this month, according to the Seattle Times. "If I get a life sentence and she's [dead] then there's no punishment attached to it because I already have a life sentence."

This case in reminiscent of the case of John David Duty the last man executed in 2010. Duty was in an Oklahoma penitentiary serving three life sentences after being convicted of armed robbery, kidnapping, first degree rape and shooting with intent to kill.

As chronicled in my forthcoming book, The Faces of Death: Desperate Appeals, Last Meals and Final Statements, an In-Depth Look at Every Execution of 2010, Duty wanted out of prison one way or another. He decided he would murder his cellmate, ask for the death penalty and have the state of Oklahoma put an end to his miserable existence in the state penitentiary system.

After the murder he wrote a taunting letter to the victim's mother and a second letter to the district attorney demanding that he be charged and ultimately executed. Here is part of what he wrote, "Now if you don't do this you're only telling me it's ok for me to kill again [and] again because you're not gonna do anything to me. And if that's what it takes to get you to do something then I'll be more than happy to do it. Only next time it will be a guard or staff member, as I know you'll prosecute me then."

Duty pled guilty, was sentenced to death, and executed on December 16, 2010. Oh, by the way, Duty had a change of heart about wanting to die at the hand of Oklahoma correction officials. He fought his execution for nine years on death row--right up until his final day.

Thursday, February 24, 2011

Johnnie Baston, a condemned killer from Ohio, says he is not worried about being the first person to be executed using a new drug for lethal injection, according to UPI.

"New drug, old drug, it doesn't matter," said Baston, who is scheduled to be executed March 10, 2011. "The whole process should be eliminated,"said Baston as reported by UPI.

Baston will be the first person executed in the United States using only pentobarbital, a fast-acting barbiturate. Oklahoma used pentobarbital, but in conjunction with two other drugs, one that paralyzes the inmate and one that stops the heart. Ohio will just use a single lethal dose of penobarbital.

Ohio and every other state with the death penalty, excluding Oklahoma, used sodium thiopental for lethal injections, but Hospira, Inc. the U.S. manufacturer has stopped making the drug.

Baston, sentenced to death for the execution-style slaying of a Toledo, Ohio, store owner during a robbery on March 21, 1994, acknowledged that he is "very scared" to die.

"The fact that I'll be placed on a table and poisoned to death, I can't find any comfort in that," he told UPI. "It's kind of a sick feeling."

Baston said he is concerned about the impact his death will have on his two teenage children. Baston went to prison when his daughter was a few months old and his son had not been born.

His children will "have to live with this the rest of their lives," he said. "I won't just be their father. I'll be their father who was on Death Row and was executed." The UPI article did not mention whether Baston talked about the victim's family or specifically the victim's children and what they have gone through over past 17 years.

Ohio Governor John Kasich has not decided on a clemency request put before him by Baston, according to the Columbus Dispatch.

Texas executed Timothy Wayne Adams by lethal injection on February 22, 2011 for the death of his son, Timothy Jr. Adams shot his son twice at close range after a standoff at his his apartment, according to the Houston Chronicle.

The execution took place about 35 minutes after the U.S. Supreme Court rejected a final appeal from Adams. Adams' final appeal to the U.S. Supreme Court, filed the morning of the execution, mirrored an earlier appeal to the Texas Court of Criminal Appeals, which also ended in failure. In that appeal, David Dow, a Texas Defender Service lawyer and University of Houston law professor, argued that a 2007 court ruling in a Beaumont woman's baby-killing case should be applied retroactively to Adams.

The Appeals Court in the Beaumont case found that the mother no longer presented a continuing danger because her violence had been directed solely at her child and, in prison; she likely never again would become a mother.

Adams declined to make a final statement, shaking his head no when asked if he had any final words. Before the lethal drugs were administered, he mouthed some words to his parents and brother and sister, who witnessed the execution. Adams kept his gaze on his family members and never looked at Timothy Jr.'s mother and her family, who watched the execution from a different room than his relatives, according to the Chronicle.

He let out a series of gasps after the lethal injection took effect. Ten minutes later, at 6:31 p.m., he was pronounced dead. Adams sister Stacey Adams — watching from a witness room just feet away — collapsed in convulsive sobs. "God is still in control," her father, retired Houston firefighter Columbus Adams, told her as he supported her in his arms until a wheelchair could be rolled into position. Adams' mother, Wilma Adams, muttered, "He's going to sleep. He's going to sleep. He's going to a better place. He's going to get to see Jesus,” reported the Chronicle.

Emma Adams, the toddler's mother, quietly sobbed during the execution. She and her family declined to speak with reporters afterward.

Wednesday, February 23, 2011

The Hartford Courant asks if the death penalty is worth it in Connecticut. The state's only execution in the last half-century was the lethal injection of serial killer Michael Ross on May 13, 2005, 21 years after his arrest. Ross had not exhausted all his appeals, but waived them and repeatedly asked to be executed--similar to the three execution carried out in Pennsylvania since 1976. However, Pennsylvania has 222 killers on death row, Connecticut has 11.

The Connecticut legislature is considering a bill to abolish the death penalty. More than two dozen family members of murder victims came to the Capitol complex recently to support the bill, and 76 relatives signed a letter backing the bill. Some have described the death penalty as a cruel and costly hoax.

Connecticut's repeal bill, submitted by state Representative Gary Holder is written as a prospective measure, which means it will apply to those convicted after its effective date.Those on death row and anyone convicted before the repeal, if it happens,will still face death penalty. But as Gail Canzano, a clinical psychologist from West Hartford, whose brother-in-law was murdered in Hartford in 1999, told the Courant, those already condemned, "have decades of appeals ahead of them and it's unlikely either of the murderers will ever be executed." For this, she said, "the entire state watched as the family suffered in the courtroom, reliving the events through bloody photographs and horrifying details."

Tuesday, February 22, 2011

High Court will Determine Whether Assault Can be Prosecuted Under Federal Treaty

The U.S. Supreme Court will hear the bizarre federal prosecution of Carol Anne Bond who tried to poison her husband's mistress with chemicals she stole from work.

Bond's victim complained to local law enforcement officials who refused to follow through on her complaints. Finally, the U.S. Attorney pursued the case as a violation of a 1993 chemical weapons treaty. Bond was convicted and sentenced to six years in prison.

The case made its way to the Supreme Court and took an unusual twist. The Obama Administration determined that the U.S. Attorney took action in the case without authorization of the justice department. As a result the justice department agreed with Bond's position on appeal.

The case did not end there. The High Court appointed an attorney to argue a position opposed to Bond. According to National Public Radio (NPR), that lawyer is Stephen McAllister, a former Supreme Court law clerk. McAllister will argue that the 10th Amendment delineates what he calls "a structural right — a right that, if it belongs to anyone, it belongs to the states." Thus, McAllister argues, Bond cannot bring her 10th Amendment claim as an individual. A state or state official would have to bring it.

Not so, counters former Bush administration Solicitor General Paul Clement, who will represent Bond in the Supreme Court.

"In a criminal case, it ought to be just a fundamental principle that you have a right to object to the constitutionality of the statute under which you're being prosecuted," said Clement as quoted on NPR.

He asserts that Congress never intended to cover "domestic disputes" under a law enacted to implement the chemical weapons treaty.

Otherwise, he says, something as simple as a fight over a parking spot could turn into a federal case as soon as one of the participants gets angry enough "to throw bleach" or "use some other household chemical on [the other's] car in a malicious way."

But McAllister says a statute like this one, enacted under the federal government's treaty power, cannot be foiled by states' rights claims. He says that if Bond is right and the statute is invalid, then many terrorists would also be immune from federal prosecution.

For example, McAllister as quoted on NPR, "What about some fellow who's sitting at home and makes the chemicals and then puts them in the mail to the justices of the Supreme Court, a la the anthrax scare?"

Congress wrote this law broadly, McAllister argues, precisely because line-drawing is so difficult.

Monday, February 21, 2011

Lawyers for Houston child killer Timothy Wayne Adams said they would appeal to the U.S. Supreme Court in a last-effort to save the former security guard's life. Adams is scheduled for execution on February 22, 2011 at the Texas State Penitentiary at Huntsville.

Adams' attorneys argued that a 2007 ruling in a Beaumont, Texas baby killing should be applied retroactively to his case, reported the Houston Chronicle.

In the Beaumont case, Kenisha Berry was convicted of murdering her newborn son and sentenced to death. The Texas Court of Criminal Appeals found that evidence showed Berry had proved dangerous only to her children whom she wished to conceal from a favorite mate. The low likelihood of her becoming a parent while in prison made it "unlikely" she would constitute a future danger, the court found in agreeing to commute her sentence to life in prison, according to the Chronicle.

Attorneys argued that Adams' violence was limited to his son, and that his prison record — the killer arrived on death row in April 2003 - has been exemplary.

"For the same reasons that the finding of future dangerousness was overturned in Berry, this court should overrule the finding of future dangerousness in Mr. Adams' case," Attorney David Dow told the Chronicle.

New York Governor Andrew Cuomo took the bold step of taking on the prison industrial complex. "An incarceration program is not an employment program," he declared in his January state of the state address. "Don't put other people in prison in order to give some people jobs." The governor went on to say,"If people need jobs, let's get people jobs. Don't put other people in prison to give some people jobs. That's not what this state is all about. And that has to end this session."

How did prison construction become an employment program for rural America?

Prison facilities were once viewed with aversion as threats to a community’s well-being, prisons today are the focus of competitive bids by rural communities desperate for economic stability. However, the dire economic times and shrinking state budgets have made prisons a target for cost cutting,The Paradox of Prison-Based Economic Development in Rural America (The Paradox).

Proponents of the prisons-as-development strategy contend that prison jobs offer better wages and create more stability than the few industries that remain in rural America. Prisons as a form of economic development resulted from the convergence of two unrelated trends in America: the economic downturn in rural America and the increase in U.S. prison populations.

The practice of state and federal agencies cramming a prison down a community’s throat is certainly a thing of the past. In modern America finding a home for a prison has become a competition between rural municipalities seeking jobs for their communities.

The experience of Nebraska in the mid-1990s is indicative. With prison capacity at 149%, Nebraska’s Governor appointed a committee to recommend sites for a new prison. Sixteen communities submitted bids for the prison based on criteria developed by the committee That list was narrowed to five communities; the committee held public hearings in each and chose two on the basis of community and political support. The final decision was based on the need for economic development in each community and the work force availability, The Paradox.

Cuomo's announcement drew praise from prison reform advocates like Bob Gangi. "It's somewhat ironic that he says that's not what this state is all about," Gangi told National Public Radio. "Because that's what the state has been about for about the last 30 years."

Gangi says the old policy was too expensive. The Department of Correctional Services still employs nearly 19,000 prison guards statewide. But Gangi argues that the system also created an economic incentive to lock up people who should have been in drug rehab or mental health counseling.

"One of the problems with using incarceration as a jobs program is the fundamental immorality of it," Gangi told NPR. "Because as he said, you're locking up people in order to provide other people jobs."

Sunday, February 20, 2011

Michigan has a looming $1.58 billion budget deficit. According to the Detroit Free Press, many state capital insiders expected prison cuts as steep as $400 million.

Governor Rick Snyder, a Republican, surprised many when he made meager cuts to corrections. He said he would ask the legislature to approve the closing of one prison saving $18.9 million. He also said he would seek the privatization of food service and prison store operations, along with administrative reductions to save another $32.3 million.

Overall, Department of Corrections spending would be virtually flat, at slightly more than $2 billion in 2011.

On the other hand, while keeping prisons relatively in tact, he slashed high eduction 15 percent. According to Crain's Detroit Business, six metro-Detroit universities would see their state allocations cut by a staggering $225 million. That would include on University of Michigan, Wayne State, Michigan State, Eastern Michigan, Oakland and U. of Michigan-Dearborn. Just six universities accounting for 4 times the cuts in corrections.

Michael Boulus, executive director of the Presidents Council, State Universities of Michigan told Crain's, “It appears we’re going to continue to lead the country in this race to the bottom” of higher education.

Governor Snyder has made a "no new taxes" pledge, as have most of the new GOP governors, yet a 15 percent reduction in university funding will been a increase in college costs. The state will call it higher tuition, in reality its an eduction "tax" for hard working Michigan families trying to send a kid or two to college.

How will the budget cuts affect average Michigan families with children in college? Lets look at Bubba Doe. Bubba is a gun packing, pick-up driving Dearborn resident who voted GOP in part because of the no tax pledge. He works hard for his money and he "don't want the government gettin' it." Lets say Bubba works for ABC Automotive making $50,000 a year. He has a daughter at XYZ University paying $10,000 a year in tuition.

If Michigan would have raised taxes by one percent it would have cost Bubba $500 and tuition at XYZ would have remained the same. However, no new taxes; a 15 percent drop in allocation to universities; and in turn a 15 percent increase in tuition--final cost $1,500.

Call it what you want, but Bubba is $1,000 poorer as a result of the governor's no tax pledge.

Saturday, February 19, 2011

Ohio executed Nazi madman Frank Spisak on February 17, 2011. He was executed by lethal injection at the Southern Ohio Correctional Facility in Lucasville, according Reuters. Spisak killed three people in 1983 and was known for wearing a Hitler-style mustache during his trial.

In January, the Ohio Parole Board unanimously recommended against clemency for Spisak, and Ohio Governor John R. Kasich denied a request for executive clemency earlier this month.

According to prosecutors, Spisak said he killed a black man after rebuffing his sexual advances. Spisak tried to kill another man while on a "hunting party" for black people. While on another "hunting party," Spisak killed a second black man. He killed a white man, because he believed he was a potential witness in another murder.

Spisak was the longest serving prisoner on Ohio's death row, at 27 years.

His last meal was spaghetti with light tomato sauce, salad with Italian dressing and chocolate cake for dessert, according to a spokesperson for the Ohio Department of Rehabilitation and Correction.

His final statement was a recitation in the German language of seven verses from the Biblical Book of Revelation, which he had previously written out.

Spisak was the last Ohio prisoner to be executed using sodiun thiopental, which is in short supply. Hospira Inc. of Illinois said last month it would stop making the drug, bowing to European Union pressure. Ohio said it will use pentobarbital, which is often used to euthanize pets, for the scheduled execution of Johnnie Baston in March, according to Reuters.

Friday, February 18, 2011

Spero Lappas, a criminal defense attorney from Harrisburg, recently wrote an interesting Op-Ed on the Castle Doctrine for the Harrisburg Patriot-News. The column is worth reading and can be found in its entirety below:

Two bills pending before the state’s General Assembly are designed to increase the legal opportunity of Pennsylvanians to kill one another. HB 40 and SB 273 would broaden the poorly named “Castle Doctrine” by legitimizing the use of deadly violence in self-defense, even when the person threatened can avoid all personal risk by simply going someplace else.

These bills celebrate our right to “stand our ground” when faced with danger, and they resonate with the macho imperative that we should not have to run away from bad guys.

They will almost certainly become law; similar bills sailed through the Legislature last year before being vetoed by Gov. Ed Rendell, and Gov. Tom Corbett has reportedly said that he will sign them if they are passed this time. When that happens, it will be an awful day for law enforcement and a perilous time for public safety.

Technically, the bills would change an important part of the law of self-defense — the duty to retreat. Currently, when a person is attacked or threatened with attack he can fight back to protect himself or others: up to the point of killing the attacker. Before meeting deadly force with deadly force, he must try to escape the dangerous situation if he safely can do so.

The law makes a reasonable decision that if one person must flee or another will die, then running away is best. There are exceptions to protect a person who is threatened at home or at work, but aside from that safe retreat is preferred to homicide.

The key word here, of course, is “safe.” If you place yourself at risk by retreating you can stand and fight. There is generally no duty to turn your back on a shooter or to try to outrun gunfire. Superman might be faster than a speeding bullet, but the law recognizes that he is the only one. In the rare and true case of kill or be killed, self-preservation trumps nonviolence. The law of self-defense does not intend to promote suicide.

HB 40 and SB 273 would change these rules by allowing people to oppose deadly force with deadly force whenever they are in any place they have the legal right to be. Streets, stores, shopping malls, houses of worship, hospitals and playgrounds would all become lawful shooting ranges: dueling grounds where mortal combat is favored over the embarrassment of turning tail.

When Gov. Rendell vetoed this legislation last November he said, “I do not believe that in a civilized society we should encourage violent and deadly confrontation when the victim can safely protect themselves.” That seems self-evidently true. Rendell and others, including prominent police and law enforcement interests, oppose the “shoot first mentality” that this law would foster. Dauphin County District Attorney Ed Marsico has been quoted as saying that “someone can claim self-defense if they shoot someone who looks at them the wrong way.”

These bills and their authors seem little troubled by these public safety concerns. Instead, the language of the bills blithely proclaims that “it is proper for law-abiding people to protect themselves” and that no person “should be required to needlessly retreat in the face of intrusion or attack” outside their home or vehicle.

The battle lines for this debate are drawn close to pro-gun, anti-gun divisions with one sponsor of the Senate Bill quoted as saying “I bust my butt for” the NRA. But this is really not just a gun rights issue, it is an issue complicated by pride and vanity and a misguided notion of what it means to be brave. Running away is weak, and standing your ground is manly. This is a law that would exalt saving face over saving lives.

Pennsylvania and its legislators should be looking for tools to reduce lethal violence rather than finding new ways to glorify its increase. The criminal courts already overflow with the consequence of senseless mayhem, and those of us who work there would prefer not to see it get any worse.

Thursday, February 17, 2011

The death penalty has lost its way in the muddled political rhetoric of 21st century governance

This week's news provides a glimpse into the untenable posture of the death penalty in America. Today's death penalty is more of a political prop than a legitimate form of punishment within the criminal justice system.

There were only 46 executions in 2010. The average length of time between murder and execution for those 46 condemned killers was 16.7 years. In 1994, about 16.7 years ago, 328 men and women were sentenced to death nationwide. That was the highest number since the death penalty was reinstated in 1976. In, 2010 there were far fewer offenders sentenced to death, 112, still more than twice the number executed.

The death penalty has become a symbolic form of punishment. No one believes that the 3,373 men and woman on the nation's death rows will ultimately face execution. Let's say that death penalty verdicts continue at 2010's pace of 112 per year for the next ten years. There would be approximately 4,500 men and women on death row. Let's say that all 35 states with the death penalty executed one offender a month for the next ten years (this is not completely realistic since only eight states have more than 120 offenders on death row) after ten years at that frantic, and frankly impossible, pace there would be 4,300 executions, still leaving about 200 people on death row.

My point is,the likelihood that an offender sentenced to death will ultimately be executed is about one in seven. Yet, governors and legislators; prosecutors and defense attorneys; wardens and corrections officers consume so much of their time "tinkering" with the death penalty. Lawyers and prison officials have to--politicians want to.

In Illinois, the legislature voted to abolish the death penalty. The bill has been on Governor Pat Quinn's desk for more than a month. According to Gatehouse News Service, two Republicans have introduced bills that would reinstate and further reform the death penalty if Governor Quinn signs a bill abolishing it.

House Bill 1520, sponsored by State Representative Dennis Reboletti would ask voters at the November 2012 election whether or not they want Illinois to have capital punishment. The referendum would be advisory.

House Bill 1519, also sponsored by Reboletti, would reduce the number of aggravating factors for which the death penalty can be imposed. And Senate Bill 2277, sponsored by state Senator Kirk Dillard creates a panel that would have to pre-approve cases in which prosecutors seek the death penalty.

The two House bills would go into effect upon passage only if Governor Quinn signs the death-penalty abolition bill sitting on his desk. The governor has said he is weighing the merits of capital punishment and trying to hear from opponents and supporters before he makes up his mind.

In West Virginia, the death penalty was repealed in 1965. At the request of Delegate John Overington the House Judiciary Committee recently held a public hearing considering whether to reinstate the death penalty, according to the Charleston Daily Mail.

Overington is one of nearly 20 lawmakers who have co-sponsored the death penalty measure. There are two bills and one proposed constitutional amendment, which would have to be approved by voters statewide.

The hearing lasted about 90 minutes. Ten people spoke in favor of reinstatement, while 13 spoke against. House Judiciary Chairman Tim Miley said he did not believe there were enough votes on the panel to endorse a death penalty bill. He does not expect to place it on the committee's agenda.

Senate Judiciary Chairman Corey Palumbo whose father, Mario, fended off strong efforts to reinstate the death penalty in the 1970s and early 80s, said the measure also lacks support on his side of the Capitol.

Overington has been sponsoring death penalty bills annually for the past 25 years.

He said one-fifth of all House members have signed on to sponsor the three measures dealing with the issue during this session. He hopes they can somehow get the issue up for a vote.

In Montana, the state Senate is sending a bill to repeal Montana's death penalty to the House, where the plan failed two years ago, according to the Billings Gazette.

A day after the Senate signaled its support for Senate Bill 185, the chamber gave it final passage with another 26-24 vote.

The bill drew the support of all the chamber's Democrats and four Republicans.

If it passes, the bill will immediately replace the death penalty with life in prison without parole and could change the sentences of two inmates currently on death row.

Next, the bill must clear the Republican-dominated House. A similar measure passed the Senate last session in 2009, but didn't even make it out of a House committee.

In recent weeks, New Mexico's new GOP governor proposed a measures to reinstate the death penalty. Former Governor Bill Richardson signed a bill to outlaw the death penalty a couple of years ago. In New Jersey a legislator who sponsor the bill abolishing the death penalty has now come forward to say he would support the death penalty in limited circumstances.

Does this all sound crazy? Well it is crazy. The death penalty has more to do with political symbolism, "I'm a tough, law and order guy," than holding killers accountable and deterring future murders. The death penalty has lost its way in the muddled political rhetoric of 21st century governance.

What influence can proponents of the death penalty claim of a punishment that will be impossible to carry-out for the thousands of offenders already sentenced to death and have very little likelihood of being carried out for those yet to be sentenced.

I'm not suggesting that the death penalty is unfairly imposed, or that it is racially biased, or that innocent men or women have been executed, in fact no one can point to a single factually innocent offenders who has been executed in the modern era of the death penalty. I'm simply saying if you have 3,400 offenders on death row, and every year another 100 are added and the states execute about 50 a year, have those states with the death penalty created, or perpetuated, an illusory punishment? Should America continue to impose a sentence that has about a 16 percent chance of being carried out?

Wednesday, February 16, 2011

Texas carried out its first execution of the year. Michael Wayne Hall was put to death by lethal injection 13 years to the day after the murder of 19-year-old Amy Robinson. He was pronounced dead at 6:23 p.m. according to a spokesman for the Texas Department of Criminal Justice, reported Reuters.

Hall's co-defendant, Robert Neville, was executed in 2006 for the murder.

When Robinson was riding her bike to her job at a grocery store, Hall and Neville offered her a ride and drove her to a field in Fort Worth, according to an account by the Texas Attorney General's office. There, Neville tried unsuccessfully to shoot her with a crossbow, according to court documents. Then, Hall shot her with a pellet gun and Neville shot her with a .22 caliber rifle, killing her, the according to Reuters.

The two men returned to the scene a few days later. Hall took keys and money from her pocket and Neville fired shots into her dead body.

Hall and Neville said in a 1998 television interview that they chose to kill Robinson, who was part American Indian, because she was not white and because she trusted them. Hall said in the interview that the two men "busted out laughing" as she died.

Hall's lawyers argued that he also had mental disabilities and was therefore exempt from the death penalty.

Before his death, Hall gave a tearful final statement in which he apologized to Robinson's family for causing "heartache, grief, pain and suffering" and to his own family for letting them down, reported Reuters.

"Here I am, a big, strong youngster, crying like a baby," Hall said at the end of the statement, according to Reuters. "I am man enough to show my emotions and I am sorry. I'm sorry for everything. I wish I could take it back, but I can't."

Hall's last meal was fried, barbecued and baked chicken, along with pizza, brownies, sweet tea, milk and vanilla pudding.

The execution was the sixth in the United States this year. Texas executed 17 people in 2010, down from 24 in 2009. The state has executed more than four times as many people as any other state since the death penalty was reinstated in the United States in 1976, according to the Reuters. However, there are only two more executions planned through April.

The execution of Martin Link, the first in Missouri in nearly two years, was carried out at 12:15 a.m. February 9, 2011 at the state prison in Bonne Terre after last-minute appeals failed, according to Reuters.

Governor Jay Nixon denied a clemency petition, and appeals before Missouri and U.S. federal courts also failed. Nixon said nothing had changed since Link was convicted of killing Elissa Self-Braun, who disappeared walking to her school bus stop. Her body was found four days later floating in the St. Francis River, about 135 miles from her home.

The execution used sodium thiopental, a drug no longer made by Hospira, Inc., the only U.S. company that manufactured the drug. The company said recently that it will no longer make the drug because it does not want it to be used in executions.

Missouri's last execution was in 2009, and another man, Richard Clay, was scheduled to die earlier this year. His sentence was commuted to life in prison at the last minute by Nixon, according to Reuters.

The execution of Link was the fifth this year in the United States. There were 46 executions in the U.S. during 2010, down 12 percent from 2009. Since 1989, Missouri has executed 67 men.

Tuesday, February 15, 2011

An ominous sign of further reductions in local law enforcement was revealed by GOP congressional leaders. With many local police departments facing lay-offs or at least hiring freezes, The Crime Report is reporting the House Appropriations Committee issued a proposal calling for even deeper cuts in criminal justice programs and federal agencies across the board. Among the new proposals are a $581.3 million reduction in state and local law enforcement grant programs, $191 million from juvenile justice aid, and elimination of the COPS hiring program and the Weed and Seed program.

Deep cuts in federal crime fighting resources could have a devastating effect on crime rates in states and municipalities already struggling with budget deficits. In places like Oakland, CA and Newark, NJ further reduction in criminal justice resources could have a huge impact on quality of life issues.

Will the budget squeeze and resulting service reductions cause a reversal in the declining crime rates that many policy makers are taking for granted? Only time, and thousands of additional victims, will tell.

Monday, February 14, 2011

When shots from a pellet gun and arrows from a crossbow didn't kill their intended victim and provide the adrenaline rush they desired, Michael Wayne Hall and Robert Neville switched to a .22-caliber rifle, reported the Austin American-Statesman.

"Target practice," they bragged after they were arrested two weeks later for the torture and slaying of Amy Robinson, a 19-year-old with mental disabilities whom they knew.

Hall, 31, is set to be executed today, 13 years to the day since Robinson was abducted as she rode her bike to work at an Arlington supermarket. Neville was put to death five years ago.

Hall would be the first convicted killer executed this year in Texas. His lawyers have argued that he was mentally impaired and ineligible for lethal injection; his latest appeal was turned down Monday by the Texas Court of Criminal Appeals, according to the American-Statesman.

In 1978, Oregon became the first state to create a Psychiatric Security Review Board with its primary responsibility being to protect the public, according to the Oregonian.

Oregon taxpayers are pouring hundreds of millions of dollars into treating a few hundred criminally insane patients in the state hospital, thousands more sit in prison with limited mental health treatment, and thousands more live on the street with no treatment at all.

According to the Oregonian,of the 503 patients who were at the Oregon State Hospital in Salem last week, 344 have been found guilty except for insanity. Some of them are dangerous offenders, convicted of murder and rape; others are not violent. Nearly 100 have committed low-level felonies or misdemeanors, such as theft or criminal mischief, that might have gotten them probation. But because they pleaded insanity, all will stay in secure wards -- often longer than the sentences they would have served in prison.

Judges, prosecutors and attorneys have found Oregon's guilty except for insanity law a useful tool. Courts placed 63 people under the psychiatric security board's jurisdiction last year, 82 in 2009. By comparison, Connecticut, with a population slightly smaller than Oregon's, placed six people under its psychiatric board's jurisdiction in the last year, reported the Oregonian.

Why is Oregon committing at least 10 times more?

One clear difference is that Oregon courts put people who have committed misdemeanors in the state mental hospital.

Case in point, the Oregonian reported about Wayne Richards who landed in the state mental hospital in Salem after he stole a scooter from a Fred Meyer store and abandoned it in a parking lot across the street. Oregon taxpayers will spend $17,661 every month he stays there, in one of the most expensive and most secure treatment settings the state has to offer. Of course, this is not Richards first offense, he has a long rap sheet.

The tab so far? Close to $300,000, for one guy who stole a scooter.

Richards agreed to plead guilty except for insanity in August 2009 because he thought he'd get the mental health attention he couldn't find on the outside. He also admits he took the plea because he knew he'd have warm meals and a roof over his head. It is a sad state of affairs when a guy thinks he is better off in an institution than on the street.

It becomes even worse when the government pays outrageous amounts of money, $17,661 per month, to care for someone that could function on the street for a fraction of the cost. Let's say instead that Oregon gave Richards an apartment for $1,000 a month, $1,000 spending money a month, $500 for a car, $750 for food and $100 a day for psych meds and treatment, the state would still save about $11,500 a month.

Taxpayers would be outraged that an offender could be living such an opulent lifestyle in the community on the public's dime, yet it would be about a third of what the state is paying to house a mentally ill offender in a "secured" facility.

After his plea, Richards learned he would be under the jurisdiction of the Psychiatric Security Review Board for five years -- likely twice as long as he would have been in prison. If he stays there the entire time he's under the board, the bill will top $1 million, according to the Oregonian.

Richards wonders if there could have been a better option for him and for taxpayers. "It's not worth it," he told the Oregonian, "not worth it at all."

Can you imagine what Oregon's mental health system could do for people in the community with mental illness if they had the $1 million the state could spend on Richards. The real insanity in Oregon is spending all this money on the back-end after a crime has been committed rather than for treatment on the front-end before a "person" with mental illness becomes an "offender" with mental illness.

During these difficult economic times, it is hard to imagine that any government body can continue to condone such gross mismanagement of scares resources.

Sunday, February 13, 2011

Frank Spisak is scheduled to die in Ohio's death chamber on Thursday, February 17, 2011. This past week, Governor John Kasich refused to grant clemency to Spisak and last summer the U.S. Supreme Court upheld his conviction and sentence.

Spisak killed three people and and tired to kill two others at Cleveland State University in 1982. At the time he had grown a mustache like Adolf Hitler's, admitted to killing three people and wounding two, expressed remorse only about a victim who "wasn't Jewish like I thought he was," and said he would kill again, according to the Washington Post.

The U.S. Supreme Court opinion in Smith v. Spisak, 558 U.S. ___ (2010)was very vivid in portraying Spisak at the time of trial. During the guilt phase of the trial, in an apparent attempt to show Spisak was not guilty by reason of insanity, defense counsel called Spisak to the stand. Spisak, 130He admitted he killed three individuals and attempted to kill two others “because he was a follower of Adolf Hitler, who was Spisak's ‘spiritual leader’ in a ‘war’ for ‘survival’ of ‘the Aryan people.’” “[H]e had hoped to ‘create terror’ at Cleveland State University, because it was ‘one of the prime targets' where the ‘Jews and the system are brainwashing the youth.’” He then described each killing: [I]n February 1982 he had shot Rickerson, who was black, because Rickerson had made a sexual advance on Spisak in a university bathroom. He expressed satisfaction at having “eliminated that particular threat ... to me and to the white race.” In June he saw a stranger, John Hardaway, on a train platform and shot him seven times because he had been looking for a black person to kill as “blood atonement” for a recent crime against two white women. He added that he felt “good” after shooting Hardaway because he had “accomplished something,” but later felt “[k]ind of bad” when he learned that Hardaway had survived.

In August 1982, Spisak shot at Coletta Dartt because ... he heard her “making some derisive remarks about us,” meaning the Nazi Party. Later that August, he shot and killed Timothy Sheehan because he “thought he was one of those Jewish professors ... that liked to hang around in the men's room and seduce and pervert and subvert the young people that go there.” Spisak added that he was “sorry about that” murder because he later learned Sheehan “wasn't Jewish like I thought he was.” And three days later, while on a “search and destroy mission,” he shot and killed Brian Warford, a young black man who “looked like he was almost asleep” in a bus shelter, to fulfill his “duty” to “inflict the maximum amount of casualties on the enemies.”

Spisak also testified that he would continue to commit similar crimes if he had the chance. He said ... he “didn't want to get caught [after Warford's murder] because I wanted to be able to do it again and again and again and again.” In a letter written to a friend, he called the murders of Rickerson and Warford “the finest thing I ever did in my whole life” and expressed a wish that he “had a human submachine gun right now so I could exterminate” black men “and watch them scream and twitch in agony.” And he testified that, if he still had his guns, he would escape from jail, “go out and continue the war I started,” and “continue to inflict the maximum amount of damage on the enemies as I am able to do.”

"Ladies and gentlemen, when you turn and look at Frank Spisak, don't look for good deeds, because he has done none. Don't look for good thoughts, because he has none. He is sick, he is twisted. He is demented, and he is never going to be any different." That was part of the closing argument presetned by Spisak's attorney Tom Shaughnessy.

The 6th Circuit Court of Appeals found that Shaughnessy was ineffective and granted Spisak a new trial. The Supreme Court agreed that Shaughnessy's strategy was ineffective, the Court said "palpably deficient," but basically concluded that no one could have saved Spisak from himself.

According to the Washington Post, Justice John Paul Stevens, who agreed with the outcome of the case, nevertheless wrote separately to emphasize the "catastrophe of counsel's failed strategy," and said it was difficult to demonstrate how egregious it was "without reproducing it in its entirety."

Stevens added: "Indeed, the argument was so outrageous that it would have rightly subjected a prosecutor to charges of misconduct."

Even so, Stevens said, he had to agree with the rest of the court: "Even the most skillful of closing arguments -- even one befitting Clarence Darrow -- would not have created a reasonable probability of a different outcome in this case."

The Supreme Court concluded that, "Spisak's counsel was palpably deficient. Nevertheless, the Supreme Court easily moved to a prejudice analysis, concluding the stark facts of the murders, Spisak's delight in them and his firm purpose to commit more, all fresh in the jury's mind, would unlikely be ameliorated by a more robust defense."

Saturday, February 12, 2011

Chairman of the House Judiciary Committee State Representative Ron Marsico a Republican announced in a press release that legislation to amend Pennsylvania’s Megan’s Law passed the House of Representatives this week.

“We had bipartisan support for these bills last session, and it was truly unfortunate that this legislation was eventually vetoed by Governor Ed Rendell. It is worth noting that Republican legislators attached the Megan's Law amendments to the Castle Doctrine legislation which was the reason for Rendell's veto.

The legislation to close the Megan’s Law loopholes was put on a fast track in Pennsylvania. The law did not provide a penalty for out-of-state sex offenders who where were lifetime registrants who did not register upon moving to Pennsylvania. The state unknowingly became a safe haven for serious sex offenders. “Needless to say, I am thrilled that this legislation received the support it deserved. Obviously, nothing is more important than protecting the children in our Commonwealth, said Marsico”

The legislation passed in the House would change and significantly strengthen Pennsylvania’s Megan’s Law. House Bill 68, would include the requirement for sex offenders without a residence to register every 30 days with the Pennsylvania State Police as transients. House Bill 75,would provide for specific criminal sentences for sex offenders who fail to comply with registration requirements.

Marsico said, “We need to continue to do all that we can to combat sexual predators who stalk our loved ones.” The bill now goes to the state senate. House Bill 75 passed by a vote of 197-1, while House Bill 68 passed by a vote of 198-0.

Friday, February 11, 2011

This week, Senator Jim Webb a Democrat from Virginia announced his intention not to seek re-election next year and reintroduced the National Criminal Justice Commission Act, which would create a blue-ribbon, bipartisan commission of experts charged with undertaking an 18-month top-to-bottom review of the nation’s criminal justice system and offering concrete recommendations for reform.

The bill, which was first introduced March 26, 2009, was approved by the Senate Judiciary Committee on January 21, 2010, with 39 bipartisan cosponsors. On July 28, 2010, it passed the U.S. House of Representatives, with the support of Congressmen Bill Delahunt, a Democrat and Lamar Smith, a Republican.Despite strong bipartisan support, the bill was blocked in the Senate last year.

“This is not a political question; it is a leadership challenge that affects every community in the country and calls for us to act,” said Senator Webb. “We can be smarter about whom we incarcerate, improve public safety outcomes, make better use of taxpayer dollars, and bring greater fairness to our justice system.

“America has the highest documented rate of incarceration in the world, yet 60% of Americans feel less safe in their own neighborhoods than they did a year ago. We spend a staggering $68 billion every year just to keep people locked up, and we lose billions more in lost productivity due to the lack of proper re-entry programs, said Senator Webb.”

The Commission would study all areas of the criminal justice system including federal, state, local and tribal governments’ criminal justice costs, practices, and policies. After conducting the review, the Commission would make recommendations for changes in, or continuation of oversight, policies, practices, and laws designed to prevent, deter, and reduce crime and violence, improve cost-effectiveness, and ensure the interests of justice.

Thursday, February 10, 2011

Debbie Henthorn a contributor to Yahoo News makes an interesting observation about the death penalty in Ohio. I have written on this blog that Ohio carried out more execution in 2010 than every other state with the exception of Texas. Ohio accounted for about 18 percent of all executions carried out nationwide in 2010.

There are nine executions scheduled for 2011. There were eight executions carried out in 2010 the most in a single year since Ohio reinstated the death penalty in 1999. In addition to the eight executions,three other condemned inmates were scheduled to die, but Richard Nields was granted clemency and two others, Kevin Keith and Sidney Cornwell, had their sentences commuted.

While 11 inmates were removed from death row in 2010, there were only six new arrivals for the year. The last conviction to result in the death penalty in Ohio was Mark Pickens of Hamilton County for three counts of aggravated murder. Pickens was transferred to death row on July 16, 2010.

Henthorn points out that there are fewer offenders being sentenced to death than are being executed. Fewer prosecutors are seeking the death penalty and fewer juries are imposing the death penalty. This goes against a national trend that has existed since the death penalty was reinstated in 1976 by the U.S. Supreme Court in Gregg v. Georgia, 428 U.S. 153 (1976). That is why Ohio has 157 men and women on death row. Is the tide turning against capital punishment?

Wednesday, February 9, 2011

Missouri executed Martin Link this morning. It is the first execution in the state in nearly two years. The execution was carried out in the state prison in Bonne Terre after last-minute appeals failed, according to Reuters.

Governor Jay Nixon earlier on Tuesday denied a clemency petition, and appeals before Missouri and U.S. federal courts also failed.

Link was convicted of killing Elissa Self-Braun, who disappeared walking to her school bus stop. Her body was found four days later floating in the St. Francis River, about 135 miles from her home.

Missouri's last execution was in 2009, and another man, Richard Clay, was scheduled to die earlier this year. His sentence was commuted to life in prison at the last minute by Nixon.

Tuesday, February 8, 2011

Pennsylvania is a safe haven for out of state sex offenders. People convicted of some of the most heinous sex offenses can move to Pennsylvania and disappear and there's little police can do about it, according to the Pittsburgh Tribune-Review.

When offenders are sentenced for certain sex offenses, they are required to register an address with the state police pursuant to Megan's Law. If out-of-state offenders move into Pennsylvania, they are also required to register with the state police.

The state's Megan's Law left a loophole for out-of-state sex offenders who are lifetime registrants, those offenders must register annually, or whenever they move, with the state police for their entire life.

According to the Tribune-Review, the lack of a penalty for out-of-state violators of the law came to light through a Lancaster County case involving Gilbert Arroyo, who was convicted of rape in New York. When he moved to Pennsylvania, he was subject to lifetime registration. State police charged him with failure to update a change of address in February 2006.

He was convicted in 2009. On appeal, the state Superior Court found that the law does not criminalize the failure to comply with the registration for out-of-state, lifetime offenders, and dismissed the case in March of 2010.

A previous effort to close the loophole failed last year when Senator Richard Alloway attached the legislation closing the loop-hole to the Castle Doctrine bill. Governor Ed Rendell vetoed the bill.

Monday, February 7, 2011

Jordan Brown, 13, was arrested nearly two years ago for the murder of Kenzie Marie Houk and her unborn child.

It is alleged that on Feb. 20, 2009, Brown shot Houk while she slept. The investigation by the Pennsylvania State Police alleges that Brown was preparing for school when he entered Houk's bedroom, placed a 20-gauge shotgun to her head and pulled the trigger. Houck was sleeping at the time. The boy allegedly put the gun away and then escorted his younger sister to the bus stop.

Brown, who was 11 years old at the time of the alleged incident, was arrested and charged as an adult with first degree murder — a requirement under Pennsylvania law.

Pennsylvania has 444 offenders serving life without the possibility of parole for crimes they committed as juveniles, more than any other state in the country. According to the Pittsburgh Post-Gazette , that figure represents about 20 percent of all juvenile lifers nationwide.

But if Brown is tried as an adult and convicted of first degree murder, he will be the youngest person in the U.S. ever sentenced to life without the possibility of parole. And his case has ignited international attention.

Brown's attorneys requested that the Lawrence County Common Pleas Court decertify Brown's case from adult court to juvenile court. In March of last year, after a lengthy hearing, Judge Dominick Motto ruled that Brown's case remains in adult court.

Motto ruled that Brown was not amenable to rehabilitation.

The Juvenile Act is premised on the idea that young offenders need not be punished, but provided treatment and services to aid in rehabilitation.

Motto based his findings, in part, on the fact that without accepting responsibility for Houk's death Brown would not be amenable to rehabilitation as set forth in the Juvenile Act.

Attorney Lourdes M. Rosado of the Juvenile Law Center in Philadelphia argued on behalf of Brown before the Superior Court.

Rosado argued that Motto's order should be vacated and Brown's case remanded to Lawrence County with the proviso that the court not consider Brown's assertion of innocence in determining whether he is amenable to rehabilitation.

Rosado argued that Motto's order infringed upon a fundamental constitutional right provided by the Fifth Amendment to the United States Constitution, namely the right against self-incrimination.

Christopher Carusone, chief deputy attorney general for the Office of Attorney General, argued on behalf of the prosecution.

The case had been turned over to the Attorney General's office by the Lawrence County district attorney because of a conflict of interest.

Rosado went through her argument without much interruption from the three-judge panel hearing the case, which consisted of Judges Judith Ference Olson, Cheryl Lynn Allen and Robert E. Colville.

Rosado pointed out that the 1977 state Supreme Court case Commonwealth v. Bethea found it impermissible to penalize an offender who went to trial as opposed to pleading guilty.

Bethea can be analogized to Brown's case in that the court refused to decertify because the defendant exercised his constitutional rights. Rosado argued that Motto premised his decision on Brown's failure to take responsibility and, therefore, his decision is tainted.

Olson did interrupt Rosado at one point, however, and asked: "Judge Motto expressed he considered the issue, 'this court is not concluding a child must confess,' it's a factor. How do we find that Judge Motto is fibbing?"

Rosado replied: "The court was incorrect in concluding that rehabilitation needs an admission."

That was the only question asked of Rosado.

Carusone, on the other hand, got up to argue and made it about two minutes into his argument before he was hit with a barrage of questions by the three-judge panel.

Allen asked how the Fifth Amendment right against self-incrimination factored into the prosecution's consideration. Carusone responded that Commonwealth v. Archer , a 1998 Superior Court case, provides that a lack of remorse is a factor that can be considered for purposes of decertification.

Allen came back to the Fifth Amendment issue at least five times during Carusone's argument.

Finally, she said: "Bottom line ... were the defendant's Fifth Amendment rights violated by the way the trial court handled the proceeding."

Carusone suggested that Brown did not invoke his right to remain silent.

Carusone said that Brown told the evaluating psychiatrist, "I didn't do it." Carusone alluded to a distinction between invoking one's right to remain silent and denying involvement in the offense.

Colville, a former prosecutor, seemed troubled by the role of remorse prior to a finding of guilt.

"I don't think you can use his Fifth Amendment rights against him to say he isn't amenable to rehabilitation," Colville said in a telling comment. "I haven't closed off this issue yet…"

Rosado saved two minutes of her argument for rebuttal.

At that time, Olson asked: "[You're] argument carries more weight if he [Brown] invokes his Fifth Amendment rights. He specifically denied [the offense], including facts not consistent with the facts of the case. Does that change your position?"

Rosado concluded her argument by saying there are additional issues in the case beyond invoking the right to remain silent, namely the presumption of innocence and the right to go to trial.

A decision is not expected for several months. In the meantime, Brown will remain at the Edmund L. Thomas Adolescent Detention Center in Erie.

Deborah W. Denno, a law professor at Fordham University and an expert on the death penalty told the New York Times the most humane way to carry out the death penalty is through the use of a firing squad.

Denno's opinion is interesting in light of the shortage of sodium theopental. The default method of execution in all thirty-five states with the death penalty is lethal injection. In thirty-three states executions are carried out using a three-drug protocol. In Ohio and Washington state the department of corrections uses a single drug protocol. Thirty-three states use sodium theopental. Oklahoma and now Ohio have moved away from sodium theopental and now use pentobarbital. Ohio is the only state planning to use a single dose of pentobarbital.

The U.S. Supreme Court in Baze v. Rees, 553 U.S. 35(2008) found that lethal injection did not violate the Eighth Amendment ban against cruel and unusual treatment. With continued concern about the manufacture, or availability from international sources, of sodium theopental and pentobarbital will states begin to look at alternative methods of execution.

Denno told the Times one method that is quick, effective, affordable and does not depend on Europe: the firing squad. Since 1976, a firing squad has been used only three times, all in Utah. Although the state changed its death penalty law in 2004 to require lethal injection, it allowed Ronnie Lee Gardner — who was convicted of murder in 1985, when the firing squad was still used — to choose it. He was shot to death last June.

“It’s the most humane procedure,” Denno told the Times. “It’s only because of this Wild West notion that people are against it.”

Sunday, February 6, 2011

Ohio Supreme Court Justice Paul Pfeifer wants Gov. John Kasich and the Ohio Legislature to end capital punishment. As a state senator in 1981, Justice Pfeifer helped draft Ohio’s death penalty statute.

Justice Pfeifer recently wrote in the Cleveland Plain Dealer, “We set out to enact a law that would give prosecutors the capability to seek capital punishment for the absolute worst offenders.” Justice Pfeifer went on to write, “The law was meant to be employed only when a certain set of aggravating circumstances warranted execution. But over the years, the death penalty has come to be applied more pervasively than we ever intended.”

Review of verdicts

After years of reviewing death penalty verdicts rendered through a statute he helped write, Justice Pfeifer wrote, “I have come to the conclusion that we are not well served by our ongoing attachment to capital punishment.”

Justice Pfeifer’s position is reminiscent of U.S. Supreme Court Justices Harry Blackmun and John Paul Stevens. Justice Blackmun wrote before his retirement in 1994, renouncing his career-long acceptance of capital punishment, “The death-penalty experiment has failed. I no longer shall tinker with the machinery of death.”

Justice Stevens was one of the co-authors of Gregg v. Georgia, the U.S. Supreme Court’s 1976 decision that reinstated the death penalty. However, in 2008, Justice Stevens wrote, “The imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the state (is) patently excessive and cruel and unusual punishment violative of the Eighth Amendment.”

Justice Pfeifer’s about-face comes at a time when Ohio is literally setting the standard for capital punishment nationwide. First, Ohio took the bold step of changing its execution protocol. All 35 states with capital punishment used a three drug protocol. In 2008, after a contentious debate, the U.S. Supreme Court found that the three-drug protocol did not violate the Eighth Amendment ban against cruel and unusual punishment.

A year later, Ohio moved to a single drug protocol. Ohio began using a single lethal dose of sodium thiopental for executions. Washington has since adopted the protocol and other states are considering the single-drug method as well.

Large numbers

Last year, Ohio carried out more executions than any other state, with the exception of Texas. The eight executions in 2010 were the most in any year since Ohio reinstated the death penalty in 1999. Ohio has executed 41 prisoners since that time, with 157 still on death row.

Last month, the Ohio Department of Rehabilitation and Corrections announced that the state will substitute pentobarbital for sodium thiopental in its execution protocol. Sodium thiopental’s only U.S. manufacturer will stop producing the drug.

Some states have postponed executions due to the shortage. Not Ohio. The state looked to Oklahoma which has carried out two executions with pentobarbital. The difference is that Oklahoma used the drug as part of a three drug protocol, Ohio will use a single lethal dose of pentobarbital to carry out executions beginning in April.

Justice Pfeifer premises his new opposition to capital punishment on the idea that life without parole is a suitable alternative sentence. In 2005, the Ohio legislature authorized prosecutors to seek the penalty of life without the possibility of parole as an alternative to the death penalty.

Justice Pfeifer argued as a result of the new law, “We have seen the number of death sentences drop precipitously. Prosecutors and jurors have told us—by their actions—that life without the possibility of parole is a more desirable outcome to a murder trial than a death sentence.”

During Justice Pfeifer’s swearing-in last month, he urged Gov. Kasich to commute all death row sentences to life without parole. There is little chance of that happening. Gov. Kasich has made clear his support for the death penalty.

It is worth noting that repeal doesn’t always mean forever; sometimes it doesn’t even mean a few years. Two states that recently repealed the death penalty, New Mexico and New Jersey, are considering reinstating it.

The death penalty is a politically charged issue. Left to the design of elected policymakers, capital punishment is more a campaign prop than a meaningful tool of the criminal justice system.

Saturday, February 5, 2011

Johnnie Baston was convicted of robbing Continental Wigs & Things in Toledo, Ohio on March 21, 1994. He shot Chong Hoon Mah in the back of the head execution-style. Mah was a former South Korean journalist who had immigrated to America, according to the Toledo Blade.

Baston never admitted to being the shooter. Although he admitted to being present, he suggested a phantom co-conspirator was responsible for Mah's death. The jury didn't buy it and convicted him of murder and sentenced him to death.

Now, prosecutors are in the unusual position of opposing the wishes of the victims family in fighting a request for clemency by Baston. Mah's family is opposed to Baston execution. The Blade reported, no members of the Mah family attended the hearing, but they sent word through a spokesman and an affidavit from Mr. Mah's son, Peter, that the family did not want to see the death penalty imposed after the trial and doesn't want the sentence carried out now.

Prosecutor's argued vehemently against giving the victim's position any credence.

"If you take the victim's family's wishes out of this, this is like many other felony murders in which this board has recommended no clemency. . ." said Assistant Attorney General Srephen Maher. "Is the victim's family's wishes a trump card that would trump a request that does not warrant clemency?"

"The law and facts and circumstances still have to trump the victims' wishes, and that's how it should be," Prosecutor Julie Bates told the board.

Baston's family at the hearing, asked the board to commute the sentence to life in prison without possibility of parole, an option not legally available at the time that a three-judge panel convicted him. It is a legal option now.

"The Mah family believes Johnnie to be the only shooter, and they still want to show him mercy," Mary Sue Barone told the Blade. Barone who got to know the Mah family when she was part of the team that successfully prosecuted Baston after the murder nearly 17 years ago. She's now a supervisor in the Wood County Public Defender's office.

Friday, February 4, 2011

This week Ohio state Senator Bill Seitz introduced, with bipartisan support, Senate Bill 10, a criminal justice reform plan. The legislation is the culmination of a sweeping criminal-justice reform plan proposed by the Council of State Governments and other groups.

The legislation has the backing of Governor John Kasich and Chief Justice of the Ohio Supreme Court Maureen O'Connor. The bill was also enthusiastically embraced by other state officials.

It was long ago that the state's much-heralded 1996 Truth in Sentencing Law banished "good-time" provisions and established fixed-term sentences for most offenses. In 2002, Ohio voters soundly rejected a statewide ballot issue advocating "treatment instead of incarceration" for nonviolent drug offenders, reported the Columbus Dispatch.

Since then the prison population has grown to nearly 51,000--about 33 percent over capacity--and state money for prisons has decreased. If the reform package is fully implemented, the plan promises savings of $62 million over four years and a reduction in the state prison population to its 2007 level. It also would avoid the need to spend hundreds of millions on prison construction and operations when the state faces a potential $8billion budget shortfall, according to the Dispatch.

A state budget crisis has softened the "tough on crime" mentality of many elected officials. However, not everyone has jumped on board. The Ohio Prosecuting Attorneys Association still has concerns, principally because of the earned-credit provision. John Murphy, head of the association, told the Dispatch he is sympathetic to financial concerns, but that provision violates the Truth in Sentencing Law.

"Public safety is the first responsibility of the state of Ohio," Murphy said. "You don't write sentences to fit the budget."

Thursday, February 3, 2011

Oklahoma's "lock 'em up and throw away the key" approach to criminal justice has collided head-on with a budget deficit estimated at $600 million, and prison costs that have increased more than 30 percent in the last decade, according to the Associated Press.

For years, lawmakers have pushed each other to lengthen prison sentences and increase the number of criminals behind bars. This week, the new Speaker of the House Kris Steele is expected to unveil a package of proposals that would divert thousands of nonviolent offenders from the prison system and increase up paroles.

According to the Associated Press, Oklahoma's prison population has grown from 22,600 in 2000 to nearly 26,000 now, and the budget from $366 million to $483 million last year. Unless the Legislature provides $9 million in emergency funding this year, prison officials say guards will have to take three furlough days a month beginning in March, straining the inmate-to-guard ratios that prison officials say are already the most dangerous they've been in decades.

"Truthfully, it's popular to be tough on crime," Senator Harry Coates told the Associated Press. "But when I saw what we were spending on corrections and who was going into our adult prisons and for what reasons . you figure out it's not exactly like you thought," he said.

Experts on national sentencing expect almost every state to adopt the new approach sooner or later — perhaps most this year because of the state fiscal crisis. According to the Associated Press, the Pew Center is now working with policymakers in Alabama, Arkansas, Illinois, Indiana, Michigan, North Carolina, Ohio, Kentucky, Texas and Washington about adjusting sentencing policies. Nationally, states spend an estimated $50 billion each year in locking up criminals — four times the amount spent two decades ago and second only to Medicaid spending — according to the Pew Center. A study released by the group last year shows the amount states spent locking up inmates grew nearly 350 percent from $11 billion in 1987 to $48 billion in 2008.

Wednesday, February 2, 2011

The Nebraska Department of Correctional Services recently bought a large quantity of a sodium theopental one of three drugs used in executions. Nebraska now has enough of the drug to carry out 166 executions, according to the Lincoln Journal Star. The drug has an expiration date of 2012. Nebraska has just 12 men on death row.

The state paid $2,056 to Kayem Pharmaceutical Pvt. Ltd. for 500 grams of sodium thiopental from a pharmaceuticals company in India. A Corrections spokeswoman told the Journal Star that was the minimum amount the company would sell to the state. Sodium thiopental is a barbiturate that has been used to anesthetize patients for surgery and induce medical comas. It also has been used to help terminally ill people commit suicide.

Although the FDA told the Journal Star that Nebraska can sell a percentage of the drug to other FDA approved states. However, Nebraska officials have said that Nebraska has no intention of sell the drug to other states.

There has been a shortage of the sodium theopental, which is said to cause unconsciousness in less than a minute, since last year. And the only U.S. manufacturer of the drug, Hospira Inc., said it is ending production because of death–penalty opposition overseas.

Tuesday, February 1, 2011

For those who remember the get-tough policies that many conservatives embraced in the 1980s and '90s the idea of conservative criminal justice reform meant expanding crime codes, enlarging prison and extending sentences. The get tough approach of the 1980s and 90 has put enormous pressure on state and local budgets.

Now, with most states experiencing significant budget woes, many conservatives have acknowledged that hard-line strategies, while partially contributing to a drop in crime, have also added to fiscal havoc, reports the Los Angles Times.

Corrections is now the second-fastest growing spending category for states, behind Medicaid, costing $50 billion annually and accounting for 1 of every 14 discretionary dollars, according to the Pew Center on the States.

A new conservative advocacy group called Right on Crime, has been endorsed by conservative luminaries such as former House Speaker Newt Gingrich, former Education Secretary William J. Bennett, and Grover Norquist of Americans for Tax Reform. Right on Crime is proposing reforms such as those implemented in Texas be replicated by cash strapped states across the country.

According to the Times, serious crime in Texas is on the decline. Between 2007 and 2008, the incarceration rate fell 4.5%, while states on average saw a 0.8% increase. And the state has avoided building 17,000 prison beds it once thought it needed, resulting in a savings of more than $2 billion.

Reform in Texas has been relatively well received among conservatives, in part because of the results, and in part because of a good sales job. Texas is among a number of states that have received guidance from the Pew Center's Public Safety Performance Project, which promises that reforms will be data-driven and not affect public safety.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.